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While brainstorming ideas for an outlandish new science fiction-western comic book, writers and artists at New York’s DC Comics hit on the notion of patterning two key characters after rock and blues musicians Johnny and Edgar Winter. When the book debuted in 1995, the Winter brothers, whose careers had peaked two decades earlier with Edgar’s manic monster hit “Frankenstein,” didn’t like what they saw. Rather than being heroes, characters “Johnny and Edgar Autumn” were long-haired, half-worm, half-human albino villains who live underground in the Old West, eating raw pig brains and ripping the heads off livestock. It was not an image that the Winters — albinos with pale skin, long white hair and pink eyes — found remotely amusing. They sued for defamation and misappropriation of their likenesses. On Tuesday, their case goes before the California Supreme Court during oral arguments in Los Angeles. The court is being asked to decide whether parodies, such as the Autumn brothers, are protected by the First Amendment, and to what extent an expressive work of fiction must transform a celebrity’s likeness in order to avoid violating his or her publicity rights. L.A.’s Second District Court of Appeal ruled in June that there were triable issues of fact about whether DC Comics’ lecherous Autumn brothers met the transformative test laid out by the California Supreme Court in 2001 in Comedy III Productions Inc. v. Gary Saderup Inc., 25 Cal.4th 387. In that milestone ruling, involving lithographed and silk-screened images of The Three Stooges, the high court ruled that an artist’s celebrity depictions aren’t protected by the First Amendment unless creative elements are added to transform the work into more than a likeness or imitation. Many in the artistic community have fretted that the high court’s Comedy III decision has already turned judges into art critics, and they worry that an adverse ruling for DC Comics could make the situation worse. In its court papers, DC Comics warns that a further narrowing could have a serious chilling effect on free expression. “If this court permits a trier of fact to decide whether the depiction of the Winters as the Autumn brothers is sufficiently creative so as to be transformed into something more than a mere imitative likeness of the Winters,” Beverly Hills lawyer Michael Bergman wrote, “the scope of First Amendment protection heretofore afforded to literary works will be dramatically narrowed.” Tuesday’s case centers on DC Comics’ “Jonah Hex: Riders of the Worm and Such,” a five-volume comic book series described as “an aesthetic hodgepodge of gothic horror conventions, ancient legends, cowboy ballads, Hollywood movies and western cliches.” The Autumn brothers, who fornicate with pigs, are featured in issues three through five — and on the cover of four — as evil mutant nightriders allied with a murderous underground empire of giant killer worms who battle Jonah Hex and a group of singing cowboys. DC Comics’ lawyer, Bergman, a partner at Weissmann, Wolff, Bergman, Coleman, Grodin & Evall, could not be reached for comment. But in court papers he argues that there should be no doubt that the evil Autumn brothers meet the test set out in Comedy III. “Indeed,” he wrote, “it is hard to conceive of a use of a celebrity likeness that could be more ‘transformative’ than the depiction of the Winters as the villainous half-worm, half-man Autumn brothers characters, who have green tentacles sprouting from their chests, and participate in outlandish plot scenarios involving poetry-spouting cattlemen and subterranean worm monsters.” Vincent Chieffo, a partner in the Santa Monica office of Miami’s Greenberg Traurig who represents the Winters, couldn’t be reached for comment either. But in court papers, he argues that the First Amendment doesn’t protect DC Comics’ depictions of his clients. “The required reworking of the celebrity’s image into something new, with meaning, is not satisfied merely by using the celebrity’s image to entertain,” he wrote. “If [DC Comics'] use of [the Winters'] likeness is a privileged ‘transformative’ use as a matter of law,” he continued, “then the likeness of Tom Cruise may be copied without consent as a digital ‘cyber actor’ and cast as a courageous pilot in a new action thriller.” Chieffo also said that pre-release interviews by DC Comics writers strongly suggest that the use of the Winter brothers images — touted as a “tip of the hat” to two rock legends — was intended to “free ride on the public’s interest” in the twosome for financial purposes. “This case presents a textbook example of commercial speech,” Chieffo wrote, “that uses without consent the identity of a celebrity to advertise and solicit purchases of [DC Comics'] products, goods or merchandise.” Winter v. DC Comics, S108751, has attracted the attention of some influential individuals and organizations, but they all have weighed in on DC Comics’ side. The Motion Picture Association of America Inc., the Association of American Publishers Inc. and the Authors Guild Inc. filed a joint amicus curiae brief, as did Whittier College School of Law professors David Welkowitz and Tyler Ochoa and UCLA School of Law professor Eugene Volokh. Volokh, a nationally recognized expert on the First Amendment, said in a telephone interview that the high court would set a bad precedent if it allows the right of publicity to prevail in this case. “If comic book authors can be sued for working real people into their works,” he said, “what about playwrights?” Comedian Steve Martin, he pointed out, authored a play called “Picasso at the Lapin Agile” in which he imagines a meeting between Picasso and Albert Einstein at a bar in 1904 Paris. “Could someone sue him,” Volokh speculates, “on the theory that he can’t write plays with Picasso’s name without the Picasso estate’s permission?”

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